I-3-5-50.Appeals Council Receives Additional Evidence After Issuing Denial of Request for Review

The Appeals Council (AC) may receive additional evidence after it has
denied a request for review and closed the case in the Appeals Review
Processing System (ARPS). As it is common for appointed representatives or
other agency components to submit additional evidence electronically,
branch chiefs must ensure support staff regularly reviews relevant
Electronic Folder Transaction workload listings to identify additional
evidence, even when a case is closed.

When the AC receives additional evidence after the AC denies a request for
review, support staff will take the following actions:

Determine whether the claimant has filed a civil action, and if so, route
the additional material to the Court Case Preparation Review Branch
(CCPRB);

Add an unhidden remark in the closed case in ARPS, describing the material
and indicating the action taken;

Scan the evidence into the file (if electronic), or recall the paper file
from the storage facility, establish a To Do Item in the closed case in
ARPS, associate the evidence on receipt of the file, and delete the To Do
Item; and

Forward the file to a designated reviewer in the branch (usually the
analyst who previously reviewed the case), and establish a control due
date with a To Do Item in ARPS.

If the evidence is duplicative of material already in the file, the
designated reviewer will not add a new case in ARPS. Instead, he or she
will add a new unhidden remark in ARPS indicating the material is
duplicative. In electronic files, the designated reviewer will lock the
case in eView and, in the Notes in the F section, indicate the material is
duplicative and the exhibit the information duplicates. In paper files,
the designated reviewer will mark the document(s) itself as duplicative,
specifically noting which exhibits it duplicates. The designated reviewer
will then delete the To Do Item in ARPS.

If the evidence is not duplicative, the designated reviewer will ask
support staff to create a new ARPS record with the workload type
“Reopening (REO).” The request date will be the date of the
prior AC denial notice.

NOTE:

If the claimant submitted the evidence before the date of the AC denial
notice, support staff will also add the case characteristic
“TMVV” (CORR Rec'd Before AC Action-Review NEC).

After establishing the ARPS record, the support staff will assign the case
to the analyst for workup and delete all related To Do Items.

1. Evidence
Submitted But Not Associated Prior To Date of Denial Notice

Occasionally, a claimant will submit additional evidence for AC review
before the AC releases its denial notice, but the evidence is not
associated with the file until after the AC releases its denial notice. In
these instances, the AC must consider the claimant's request for review
again.

NOTE:

If a Federal court action has been filed based on the AC denial, the
analyst will notify the CCPRB of the additional evidence issue.

If, after analyzing the additional evidence, the analyst recommends the AC
again deny the request for review, the analyst will choose
“Re-Deny” as the final recommendation in ARPS. The analyst
will also prepare an amended denial notice vacating the prior action. The
notice will:

Address the additional evidence under HALLEX
I-3-5-20, including any
protective filing date issues; and

Advise the claimant of the right to file a civil action based on the
amended notice.

If the analyst recommends any action other than a “re-deny,”
the analyst will apply the usual procedures for that action, and an AAJ
will review the recommendation and adjudicate the claim.

If the claimant submits evidence on or after the date of the denial
notice, the AC will not vacate its denial of the request for review.
Rather, the AC treats the submission of additional evidence as an implied
request for reopening of the administrative law judge's decision. For more
information about reopening procedures, see HALLEX
I-3-9-0.

NOTE:

If, before the date of the AC denial notice, the claimant also requested
exhibits, the hearing recording, or an extension of time, and the AC has
not responded to the request(s), see the instructions in HALLEX
I-3-5-50 D below.

If, after looking at the additional evidence, the analyst recommends the
AC deny the request for reopening, the analyst will choose
“Deny” as the final recommendation in ARPS. The analyst will
then prepare a denial notice, using the COR 42 in DGS. (If the analyst
recommends an action other than a denial, the analyst will use the
applicable procedures for the proposed action).

The AC will not return the evidence to the claimant unless there is a
compelling reason to do so. A compelling reason exists when the claimant
submits original copies of information that is unusual or may be difficult
for the claimant to re-obtain. For example, the AC will return original
copies of birth or marriage certificates.

D. Request for Exhibits, Hearing Recording(s), and/or Extension of Time Submitted But Not Associated Prior to Date of Denial Notice

Occasionally, a claimant will submit a request for exhibits, a hearing
recording, or an extension of time request before the AC releases its
denial notice, but the request is not associated with the file until after
the AC releases its denial notice. In these instances, the AC must vacate
the prior denial to consider the claimant's request for review again after
the claimant has had an opportunity to review and comment, as explained
below.

NOTE:

If the request for exhibits or a hearing recording was submitted by a
representative who has access to the electronic folder, the instructions
below still apply. However, the person preparing the response will also
include the following language:

“We are not enclosing copies of the exhibits and/or digital
recording you requested because you have access to the electronic folder
through the Appointed Representative Services website at
www.socialsecurity.gov/ar.”

The legal assistant (LA) will handle these requests. The LA will obtain an
ARPS query to ensure that the requested information has not already been
provided and a civil action has not been filed. If the LA determines that
the requested information has not been released, and no civil action has
been filed, he or she will:

Establish a new ARPS record with workload type “Reopening
(REO),” using the date of the AC denial notice as the request date
and adding case characteristic “TMVV.”

In paper cases, request the file from the storage facility and establish a
To Do Item to control the request.

Add an unhidden remark to the ARPS record describing who made the request
for duplicate tapes, exhibits, or both, and when the request was
received.

Immediately prepare a COR 40-A or COR 40-C letter with the designated
electronic signature. The COR 40-A is used when the requested information
is sent with the vacate action and is signed by an adjudicator. The COR
40-C is used when the action is vacated but requested information has not
yet been duplicated. The COR 40-C is signed by the Executive Director.

Release the letter to the claimant and representative, if any (with the
branch chief's approval).

If there is a subsequent application pending at the hearing level, notify
the hearing office by fax that the AC vacated its denial notice to
reconsider the claimant's request for exhibits, hearing recording, or
both. (To notify, use the Subsequent Application Case Flag, crossing out
the denial information and annotating the flag that the AC vacated the
denial and the request for review is now pending.)

As soon as the necessary actions are taken, the LA will:

Process the request for exhibits, hearing recording, or both;

Send the material to the claimant and representative, if any; and

Diary the case for potential response from the claimant and
representative, if any.

When the claimant submits additional evidence or contentions, or the diary
matures, the case will be assigned to an analyst to rework the case, using
the procedures noted in HALLEX
I-3-5-50 C above.